Digital Britain and the return of the Stationer’s Company

Last week marked
the 300th anniversary of the
Statute of Anne, the first true modern copyright law in the West, which was
passed by the British Parliament in 1710. It established a copyright term of 14
years and, for the first time, brought the author on stage as the party in whom
the right was vested, rather than the bookseller/printer who had dominated the
trade both legally and commercially since Gutenberg's time. The statute also
made the term renewable for another 14 years if the author were still alive at
the expiration of the initial period.

Last week also
occasioned the passage in England of the Digital
Economy Bill, which, for the first time, made ISPs legally liable for the
actions of their subscribers and imposed on them an affirmative obligation to
protect copyrights to which they are not party. The timing of the passage was
surely a coincidence. It's unlikely many in Parliament were aware of date's
significance. But it presented a striking juxtaposition
nonetheless.

Prior to 1710,
the book and printing trade in Britain (they were one in the same) was
controlled by the Stationer's Company of London, a royally
chartered corporation with the power to enforce crown-sanctioned publishing
monopolies (also called patents), regulate the import of books and see to it
that no "seditious" or otherwise "objectionable" books or pamphlets were printed
within the kingdom.

Since 1662,
the Stationer's had operated under the Licensing Act, which made it a crime to
print any book in Britain without a license (the history of the Stationer's
Company actually goes back much farther, and is fascinating but beyond the scope
of this blog post). To be licensed, a printer had to be a member in good
standing of the stationer's guild and submit to the authority of the Stationer's
Company.

The purpose of
the 1662 Act was to regulate the potentially dangerous technology of printing,
not to protect anything we would recognize today as authorial rights or
intellectual property. Once an author had sold his "copy" (i.e. manuscript) to a
printer, under the Stationer's Company system, he had no further legal
or contractual claim on the proceeds. It was fundamentally a system of
censorship and control, but one that was highly lucrative for the
printers.

By 1693, the
Licensing Act was set to expire. Anxious to maintain their monopolies,
printers agitated for an extension. They got one, but only until 1695, when the
debate began again.

By then,
however, the politics of publishing had changed. Influenced by the writings of John Locke and Daniel Defoe, among others,
the legal foundations of monopolies and censorship got swept up in partisan
debates that erupted in the years following the Glorious Revolution.
So, too, did traditions like the operation of the Stationer's Company that
smacked of royal privilege.

The text and
structure of the Statute of Anne reflect that ferment. In particular, the
introduction of the author as a legal and economic actor in his own right was
seen as a way to resolve many of the tensions over licensing and
monopoly.

In his Essay
on the Regulation of the Press, Defoe argued that investing authors with
proprietary rights would resolve the problem of writers issuing objectionable
works anonymously without a license by inducing them to take ownership of their
work by putting their name to it. Should a published work be deemed
objectionable, the author could be sanctioned after the fact. Thus, the
licensing system would become unnecessary.

For if an Author
has not the right of a Book, after he has made it, and the benefit be not his
own, and the Law will not protect him in that Benefit, 'twould be very hard the
Law should pretend to punish him for it.

'Twould be
unaccountably severe, to make a Man answerable for the Miscarriages of a thing
which he shall not reap the benefit of if well perfom'd.

Similarly,
authorial rights were seen as a useful mechanism for breaking the hold not only
of individual printers' monopolies but of the Stationer's Company's grip on the
book trade generally. As the copyright historian Lyman Patterson wrote in Copyright
in Historical Perspective:

The monopolies
at which the statute was aimed were too long established to be attacked without
some basis for change. The most logical and natural basis for the changes was
the author. Although the author had never held copyright, his interest was
always promoted by the stationers as a means to their end. Their arguments had
been, essentially, that without order in the trade provided by copyright,
publishers would not publish books, and therefore would not pay authors for
their manuscripts. The draftsmen of the Statute of Anne put these arguments to
use, and the author was used primarily as a weapon against
monopoly.

The maximum
28-year term of protection in the law served to emphasize the
point.

Though the
framers of the Statute of Anne may have had limited aims, there was nothing
limited about what they accomplished. In addition to making owners of authors,
the law transformed copyright from what was essentially a legal and regulatory
system to a system based on market incentives, laying the foundation of the
Anglo-American system of copyright for the next three
centuries.

Three
hundred years later, almost to the day, we have the spectacle of the British
Parliament again wrestling with a nettlesome new communication technology. Only
this time it's the technology itself that threatens to obliterate publishing
monopolies and the "reformers" that seek to reassert them.

As happened
then, a new actor has been called on stage to try to resolve the tension, in
this case the Internet service provider. Rather than investing the ISP the new
actor with proprietary rights, as the enlightenment thinkers of the 17th Century
proposed, the Digital Economy Bill
imposes on ISPs new obligations.

Under the new
law, copyright owners can send ISPs "copyright infringement reports," identify
instances of alleged infringement. ISPs are obligated to pass the notice on to
the subscriber identified by IP address. If requested, ISPs are also required to
provide copyright owners with a "copyright infringement list," identifying all
instances of infringement by a user.

The law also
compels Ofcom, the U.K.'s communications regulatory authority, to report every
three and 12 months on the level of copyright infringement occurring online. The
government then has the power to order Ofcom to require ISPs to implement
technical measures to address infringement, ranging from throttling and
bandwidth shaping to blocking specific sites and suspending users'
accounts.

If an ISP fails
to implement the required technical measures it can be fined by the
government.

In fairness, the
law is not likely to be as Draconian as that summary makes it sound. There are
many conditions that must be met before the most severe penalties can be
imposed, and any penalties that do result must square with European Union
directives that are more protective of online privacy. But it's a striking
departure nonetheless from the legacy of the Statute of
Anne.

In place of
market incentives, the Digital Economy Bill, along with its French counterpart,
HADOPI, and the growing
chorus in the U.S. for imposing greater liability on ISPs, relies on
sanctions, and points copyright law back toward a system of regulation, if not
quite official licensing.

Again in
fairness, digital technology is different from the technology of the printing
press, and may indeed require a different kind of response. But before we throw
the baby out with the bath water, it's worth remembering how well the system of
market incentives set up 300 years ago has served the public interest up to
now.